EXHIBIT (3i)(f)
CERTIFICATE OF DESIGNATIONS, PREFERENCES AND RIGHTS
OF $3.125 SERIES C CUMULATIVE CONVERTIBLE PREFERRED STOCK
$1.00 PAR VALUE PER SHARE
of
THE TJX COMPANIES, INC.
Pursuant to Section 151(g) of the
General Corporation Law
of the State of Delaware
We, Steven R. Wishner, Vice President - Finance, and Jay
H. Meltzer, Secretary, of The TJX Companies, Inc. (hereinafter
called the "Corporation"), a corporation organized and existing
under and by virtue of the provisions of the General
Corporation Law of the State of Delaware,
DO HEREBY CERTIFY:
FIRST: The restated certificate of incorporation, as
amended (the "Certificate of Incorporation"), of the
corporation authorizes the issuance of 5,000,000 shares of
Preferred Stock, $1.00 par value per share ("Preferred Stock"),
in one or more series, and further authorizes the Board of
Directors from time to time to provide by resolution for the
issuance of shares of Preferred Stock in one or more series not
exceeding the aggregate number of shares of Preferred Stock
authorized by the Certificate of Incorporation and to determine
with respect to each such series, the voting powers, if any
(which voting powers if granted may be full or limited),
designations, preferences, the relative, participating,
optional or other rights, and the qualifications, limitations
and restrictions appertaining thereto.
SECOND: The Finance Committee of the Board of Directors
of the Corporation, pursuant to authority conferred on the
Finance Committee by the Board of Directors (which fixed the
voting rights with respect to the shares designated herein), at
a meeting duly called and held on August 19, 1992 did duly
adopt the following resolution authorizing the creation and
issuance of a series of said Preferred Stock to be known as
"$3.125 Series C Cumulative Convertible Preferred Stock," said
Series C Cumulative Convertible Preferred Stock to be
convertible into the common stock, $1.00 par value per share
(the "Common Stock"), of the Corporation:
RESOLVED: that the Finance Committee of the Board of
Directors,
pursuant to authority conferred on such Finance
Committee by the Board of Directors (which fixed the voting
rights with respect to the shares designated herein) by the
provisions of the Second Restated Certificate
of Incorporation, as amended (the "Certificate of Incorporation"),
of the Corporation, hereby authorizes the issuance of a series of
cumulative convertible Preferred Stock of the Corporation and
hereby fixes the voting powers, designations, preferences, the
relative, participating, optional and other rights, and the
qualifications, limitations and restrictions appertaining thereto
in addition to those set forth in said Certificate of
Incorporation, as follows:
1. Designation and Number. The designation of Convertible
Preferred Stock created by this resolution shall be $3.125 Series
C Cumulative Convertible Preferred Stock, $1.00 par value per
share, of The TJX Companies, Inc. (the "Corporation") (hereinafter
referred to as the "Series C Preferred Stock"), and the number of
shares constituting such series shall be 1,650,000, which number
may be increased or decreased (but not below the number of shares
of Series C Preferred Stock then outstanding) from time to time by
the Board of Directors. The Series C Preferred Stock shall rank
prior to the Common Stock, prior to the Corporation's Series B
Junior Participating Preferred Stock (the "Junior Preferred
Stock"), and on a parity with the Corporation's New Series A
Cumulative Convertible Preferred Stock (the "Series A Preferred
Stock"), as to dividends and upon liquidation, dissolution and
winding up as provided in this Certificate of Designations.
All shares of Series C Preferred Stock which shall have been
issued and reacquired in any manner by the Corporation (excluding,
until the Corporation elects to retire them, shares which are held
as treasury shares but including shares redeemed, shares purchased
and retired, shares converted pursuant to Section 5 hereof and
shares exchanged for any other security of the Corporation) shall
not be reissued and shall, upon the making of any necessary filing
with the Secretary of State of Delaware have the status of
authorized but unissued shares of the Corporation's Preferred
Stock, without designation as to series, and thereafter may be
issued, but not as shares of Series C Preferred Stock.
2. Dividend Rights.
(a) General. The holders of shares of Series C Preferred
Stock shall be entitled to receive, in preference to the holders
of shares of Common Stock, Junior Preferred Stock and any other
stock ranking as to dividends junior to the Series C Preferred
Stock, when and as declared by the Board of Directors, out of
funds legally available therefor, cumulative cash dividends,
accruing from and after the date of original issuance of the
Series C Preferred Stock at an annual rate of $3.125 per share,
and no more, as long as shares of Series C Preferred Stock remain
outstanding. Dividends shall accrue and be payable quarterly in
arrears, on January 1, April 1, July 1 and October 1 in each year
commencing October 1, 1992 (each, a "Dividend Payment Date").
Each dividend will be payable to holders of record as they appear
on the stock books of the Corporation on the record date therefor,
not exceeding 60 days nor less than 10 days preceding the payment
date thereof, as shall be fixed by the Board of Directors.
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Dividends in arrears may be declared and paid at any time, without
reference to any Dividend Payment Date, to holders of record on
such date, not exceeding 60 days preceding the payment date
thereof, as may be fixed by the Board of Directors of the
Corporation. Dividends payable on the Series C
Preferred Stock (i) for any period less than a full dividend
period, shall be computed on the basis of a 360-day year
consisting of twelve 30-day months and (ii) for each full dividend
period, shall be computed by dividing the annual dividend rate by
four. Dividends on shares of Series C Preferred Stock shall be
cumulative from the date of original issuance thereof whether or
not there shall be funds legally available for the payment
thereof. Holders of shares of the Series C Preferred Stock shall
not be entitled to any dividend, whether payable in cash, property
or stock, in excess of full cumulative dividends (as defined in
Section 8) on such shares. No interest or sum of money in lieu of
interest shall be payable in respect of any dividend payment or
payments which may be in arrears.
(b) Requirements for Dividends on Parity Preferred Stock.
Subject to Section 6(b) of the Certificate of Designations,
Preferences and Rights of the Series A Preferred Stock (the
"Series A Certificate") in effect as of August 13, 1992, if there
shall be outstanding shares of any other series of Preferred Stock
ranking on a parity with the Series C Preferred Stock as to
dividends, no dividends, except as described in the next sentence,
shall be declared or paid or set apart for payment on any such
other series for any period unless full cumulative dividends on
the Series C Preferred Stock through the most recent Dividend
Payment Date have been or contemporaneously are declared and paid
or declared and a sum sufficient for the payment thereof is set
apart for such payment. Subject to Section 6(b) of the Series A
Certificate in effect as of August 13, 1992, if dividends on the
Series C Preferred Stock and on any other series of Preferred
Stock ranking on a parity as to dividends with the Series C
Preferred Stock are in arrears, all dividends declared upon shares
of the Series C Preferred Stock and all dividends declared upon
such other series shall be declared pro rata so that the amounts
of dividends per share declared on the Series C Preferred Stock
and such other series shall in all cases bear to each other the
same ratio that full cumulative dividends per share at the time on
the shares of Series C Preferred Stock and on such other series
bear to each other.
(c) Requirements for Dividends on Junior Stock. The
Corporation shall not (i) declare or pay or set apart for payment
any dividends or distributions on any stock ranking as to
dividends junior to the Series C Preferred Stock (other than
dividends paid in shares of stock ranking junior to the Series C
Preferred Stock as to dividends) or (ii) make any purchase or
redemption of, or any sinking fund payment for the purchase or
redemption of, any stock ranking as to dividends or upon
liquidation, dissolution or winding up junior to the Series C
Preferred Stock (other than a purchase or redemption made by issue
or delivery of any stock ranking junior to the Series C Preferred
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Stock as to dividends or upon liquidation, dissolution or winding
up) unless full cumulative dividends on all outstanding shares of
Series C Preferred Stock through the most recent Dividend Payment
Date prior to the date of payment of such dividend or
distribution, or effective date of such purchase, redemption or
sinking fund payment, shall have been paid in full or declared and
a sufficient sum set apart for payment thereof; provided, however,
that unless prohibited by the terms of any other outstanding
series of Preferred Stock, any moneys theretofore deposited in any
sinking fund with respect to any Preferred Stock of the
Corporation in compliance this Section 2(c) and the provisions of
such sinking fund may thereafter be applied to the purchase or
redemption of such Preferred Stock in accordance with the terms of
such sinking fund regardless of whether at the time of such
application full cumulative dividends on all outstanding shares of
Series C Preferred Stock through the most recent Dividend Payment
Date shall have been paid in full or declared and a sufficient sum
set apart for payment thereof.
3. Liquidation Preferences.
(a) Priority. In the event of any liquidation, dissolution
or winding up of the Corporation, whether voluntary or
involuntary, before any payment or distribution of the assets of
the Corporation (whether from capital or surplus) shall be made to
or set apart for the holders of any class or series of stock of
the Corporation ranking junior to the Series C Preferred Stock
upon liquidation, dissolution or winding up, the holders of the
shares of Series C Preferred Stock and the holders of each other
class or series of Preferred Stock ranking on a parity with Series
C Preferred Stock upon liquidation, dissolution or winding up
shall be entitled to receive liquidation payments according to the
following priorities:
First,
The holders of the shares of Series C Preferred Stock
shall receive $50 per share and the holders of shares of each such
other class or series of Preferred Stock shall receive the full
respective liquidation preferences (including any premiums) to
which they are entitled; and
Second,
The holders of shares of Series C Preferred Stock and
the holders of shares of each such other class or series of
Preferred Stock shall each receive an amount equal to full
cumulative dividends with respect to their respective shares
through and including the date of final distribution to such
holders, but such holders shall not be entitled to any further
payment.
No payment (in either of the First step or Second step
provided above) on account of any liquidation, dissolution or
winding up of the Corporation shall be made to holders of any such
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other class or series of Preferred Stock or to the holders of
Series C Preferred Stock unless there shall likewise be paid at
the same time to the holders of the Series C Preferred Stock and
the holders of each such other class or series of Preferred Stock
like proportionate amounts of the same payments (as to each of the
First step or the Second step above), such proportionate amounts
to be determined ratably in proportion to the full amounts to
which the holders of all outstanding shares of Series C Preferred
Stock and the holders of all outstanding shares of each such other
class or series of Preferred Stock are respectively entitled (in
either the First step or the Second step, as the case may be) with
respect to such distribution.
For purposes of this Section 3, neither a consolidation or
merger of the Corporation with or into another corporation nor a
merger of any other corporation with or into the Corporation or a
sale or transfer of all or any part of the Corporation's assets
for cash, securities or other property will be deemed a
liquidation, dissolution or winding up of the Corporation.
(b) Junior Stock. After payment shall have been made in
full to the holders of Series C Preferred Stock and to the holders
of each such other class or series of Preferred Stock as provided
in this Section 3 upon liquidation, dissolution or winding up of
the Corporation, any other series or class or classes of stock
ranking junior to the Series C Preferred Stock upon liquidation,
dissolution or winding up shall, subject to the respective terms
and provisions (if any) applying thereto, be entitled to receive
any and all assets remaining to be paid or distributed upon such
liquidation, dissolution or winding up, and the holders of Series
C Preferred Stock shall not be entitled to share therein.
4. Redemption.
(a) General. The Series C Preferred Stock may not be
redeemed by the Corporation prior to September 1, 1995.
Thereafter, the Corporation, at its option, in accordance with the
terms and provisions of this Section 4, may redeem any or all
shares of Series C Preferred Stock at the applicable redemption
price per share, expressed as a percentage of the $50 liquidation
preference thereof, set forth below (each such redemption price
resulting from the application of such percentages to such
liquidation preference, a "Redemption Price"), plus an amount
equal to full cumulative dividends thereon through and including
the date of redemption:
Twelve-month period beginning Percentage
September 1, 1995 104.375
September 1, 1996 103.750
September 1, 1997 103.125
September 1, 1998 102.500
September 1, 1999 101.875
September 1, 2000 101.250
September 1, 2001 100.625
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September 1, 2002 and thereafter 100.000%
If less than all the outstanding shares of Series C Preferred
Stock are to be redeemed, the shares to be redeemed shall be
selected pro rata as nearly as practicable or by lot, or by such
other method as the Board of Directors may determine to be fair
and appropriate.
(b) Notice of Redemption. The Corporation will provide
notice of any redemption of shares of Series C Preferred Stock to
holders of record of the Series C Preferred Stock to be redeemed
not less than 30 nor more than 60 days prior to the date fixed for
such redemption. Such notice shall be provided by first-class
mail postage prepaid, to each holder of record of the Series C
Preferred Stock to be redeemed, at such holder's address as it
appears on the stock register of the Corporation. Each such mailed
notice shall state, as appropriate, the following:
(i) the redemption date;
(ii) the number of shares of Series C Preferred Stock
to be redeemed and, if less than all the shares held by any holder
are to be redeemed, the number of such shares to be redeemed from
such holder;
(iii) the Redemption Price;
(iv) the place or places where certificates for such
shares are to be surrendered for redemption;
(v) the amount of full cumulative dividends per share
of Series C Preferred Stock to be redeemed through and including
such redemption date, and that dividends on shares of Series C
Preferred Stock to be redeemed will cease to accrue on such
redemption date unless the Corporation shall default in payment of
the Redemption Price plus such full cumulative dividends thereon;
(vi) the name and location of any bank or trust company
with which the Corporation will deposit redemption funds pursuant
to Section 4(d) below;
(vii) the then effective Conversion Price (as
determined under Section 5); and
(viii) that the right of holders to convert shares of
Series C Preferred Stock to be redeemed will terminate at the
close of business on the business day (as defined in Section 8)
next preceding the date fixed for redemption (unless the
Corporation shall default in the payment of the Redemption Price
and such full cumulative dividends thereon).
(c) Mechanics of Redemption. Upon surrender in accordance
with the aforesaid notice of the certificate for any shares so
redeemed (duly endorsed or accompanied by appropriate instruments
of transfer), the holders of record of such shares shall be
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entitled to receive, out of funds legally available therefor, the
Redemption Price plus full cumulative dividends thereon through
and including such redemption date, without interest. In case
fewer than all the shares represented by any such certificate are
redeemed, a new certificate representing the unredeemed shares
shall be issued without cost to the holder thereof.
(d) Redemption Funds. On or prior to the date of any
redemption being made pursuant to this Section 4, the Corporation
shall deposit for the benefit of the holders of shares of Series C
Preferred Stock to be redeemed the funds necessary for such
redemption with a bank or trust company in the City of New York or
in the City of Boston, in either case having a capital and surplus
of at least $100,000,000, with instructions to such bank or trust
company to pay the full redemption amounts as provided herein to
the holders of shares of Series C Preferred Stock upon surrender
of certificates for such shares; provided, however, that the
making of such deposit shall not release the Corporation from any
of its obligations hereunder. Any moneys so deposited by the
Corporation and unclaimed at the end of one year from the date
designated for such redemption shall revert to the general funds
of the Corporation and, upon demand, such bank or trust company
shall pay over to the Corporation such unclaimed amounts and
thereupon such bank or trust company shall be relieved of all
responsibility in respect thereof and any holder of shares of
Series C Preferred Stock so redeemed shall look only to the
Corporation for the payment of the full redemption amounts as
provided herein. Notwithstanding the foregoing, to the extent
that the Corporation is required under the abandoned property laws
of any jurisdiction to escheat any such redemption amounts, the
Corporation shall be absolved of any further obligation or
liability to the full extent provided by any such laws. In the
event that moneys are deposited pursuant to this Section 4(d) in
respect of shares of Series C Preferred Stock that are converted
in accordance with the provisions of Section 5, such moneys shall,
upon such conversion, revert to the general funds of the
Corporation and, upon demand, such bank or trust company shall pay
over to the Corporation such moneys. Any interest accrued on
funds deposited pursuant to this Section 4(d) shall be paid from
time to time to the Corporation for its own account.
(e) Rights After Redemption. Notice of redemption having
been given as aforesaid, upon the deposit pursuant to Section 4(d)
of the full redemption amounts as provided herein in respect of
all shares of Series C Preferred Stock then to be redeemed,
notwithstanding that any certificates for such shares shall not
have been surrendered in accordance with Section 4(c), from and
after the date of redemption designated in the notice of
redemption (i) the shares represented thereby shall no longer be
deemed outstanding, (ii) the rights to receive dividends thereon
shall cease to accrue, and (iii) all rights of the holders of such
shares of Series C Preferred Stock shall cease and terminate,
excepting only the right to receive the full redemption amounts as
provided herein without interest. If the funds deposited are not
sufficient for redemption of the shares of the Series C Preferred
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Stock that were to be redeemed, then the certificates evidencing
such shares shall be deemed not to be surrendered, such shares
shall remain outstanding and the right of holders of shares of
Series C Preferred Stock shall continue to be only those of a
holder of shares of the Series C Preferred Stock.
(f) Restrictions on Redemption and Purchase. Any provision
of this Section 4 to the contrary notwithstanding, in the event
that any quarterly dividend payable on the Series C Preferred
Stock shall be in arrears and until all such dividends in arrears
shall have been paid or declared and set apart for payment, (i)
the Corporation shall not redeem any shares of Series C Preferred
Stock unless all outstanding shares of Series C Preferred Stock
are simultaneously redeemed and (ii) shall not purchase or
otherwise acquire any shares of Series C Preferred Stock except in
accordance with a purchase or exchange offer made by the
Corporation on the same terms to all holders of record of Series C
Preferred Stock.
5. Conversion.
(a) General. The holders of shares of Series C Preferred
Stock shall have the right, at each holder's option, at any time,
in whole or in part, to convert all or a portion of such holder's
shares into a number of fully paid and nonassessable whole shares
of the Corporation's Common Stock as is equal to the aggregate
liquidation preference of the shares of Series C Preferred Stock
surrendered for conversion divided by a conversion price per share
of Common Stock of $25.9375 (as adjusted from time to time, the
"Conversion Price"). The Conversion Price shall be subject to
adjustment from time to time as hereinafter provided.
No payment or adjustment shall be made on account of any
accrued and unpaid dividends on shares of Series C Preferred Stock
surrendered for conversion prior to the close of business on the
record date for the determination of stockholders entitled to such
dividends.
Holders of shares of Series C Preferred Stock at the close of
business on a dividend record date will be entitled to receive the
dividend payable on such shares on the corresponding Dividend
Payment Date notwithstanding the conversion of such shares
following such dividend record date and prior to such Dividend
Payment Date. However, shares of Series C Preferred Stock
surrendered for conversion during the period between the close of
business on any dividend record date and the opening of business
on the corresponding Dividend Payment Date (except shares
converted after the issuance of a notice of redemption with
respect to a redemption date during such period) must be
accompanied by payment to the Corporation of an amount equal to
the dividend payable on such shares on such Dividend Payment Date.
A holder of shares of Series C Preferred Stock on a dividend
record date who (or whose transferee) tenders any such shares for
conversion into shares of Common Stock on the corresponding
Dividend Payment Date will receive the dividend payable by the
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Corporation on such shares of Series C Preferred Stock on such
Dividend Payment Date, and the converting holder need not include
payment of the amount of such dividend upon surrender of shares of
Series C Preferred Stock for conversion. Except as provided in
this paragraph (a), the Corporation will make no payment or
allowance for unpaid dividends, whether or not in arrears, on
converted shares or for dividends on the shares of Common Stock
issued upon such conversion.
If any shares of Series C Preferred Stock shall be called for
redemption, the right to convert the shares designated for
redemption shall terminate at the close of business on the
business day next preceding the date fixed for redemption unless
the Corporation defaults in the payment of the Redemption Price
plus all accrued and unpaid dividends. In the event of default in
the payment of the Redemption Price, plus all accrued but unpaid
dividends, the right to convert the shares designated for
redemption shall terminate at the close of business on the
business day next preceding the date that such default is cured.
The shares of Common Stock issuable upon conversion of the
shares of Series C Preferred Stock, when the same shall be issued
in accordance with the terms hereof, are hereby declared to be and
shall be fully paid and nonassessable shares of Common Stock in
the hands of the holders thereof.
(b) Mechanics of Conversion. Conversion of the Series C
Preferred Stock may be effected by the surrender to the Transfer
Agent (as defined in Section 8), together with any payment to the
Corporation required by Section 5(a), of the certificate or
certificates for such Series C Preferred Stock to be converted
accompanied by a written notice stating that such holder elects to
convert all or a specified whole number of such shares in
accordance with the provisions hereof and specifying the name or
names in which such holder wishes the certificate or certificates
for shares of Common Stock be issued. If more than one stock
certificate for Series C Preferred Stock shall be surrendered for
conversion at one time by the same holder, the number of full
shares of Common Stock issuable upon conversion thereof shall be
computed on the basis of the aggregate number of shares
represented by all the certificates so surrendered. In case such
notice shall specify a name or names other than that of such
holder, such notice shall be accompanied by payment of all
transfer taxes payable upon the issuance of shares of Common Stock
in such name or names. Other than such taxes, the Corporation
will pay any and all issue and other taxes (other than taxes based
on income) that may be payable in respect of any issue or delivery
of shares of Common Stock on conversion of Series C Preferred
Stock. As promptly as practicable, and in any event within five
business days after the surrender of such certificate or
certificates and the receipt of such notice relating thereto and,
if applicable, payment of all transfer taxes required to be paid
by the holder hereunder (or the demonstration to the satisfaction
of the Corporation that any such taxes have been paid) and any
payment to the Corporation required by Section 5(a), the
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Corporation shall deliver or cause to be delivered (i)
certificates representing the number of validly issued, fully paid
and nonassessable full shares of Common Stock to which the holder
of shares of Series C Preferred Stock being converted shall be
entitled, (ii) any cash owing in lieu of a fractional share of
Common Stock, determined in accordance with Section 5(d) below,
and (iii) if less than the full number of shares of Series C
Preferred Stock evidenced by the surrendered certificate or
certificates is being converted, a new certificate or
certificates, of like tenor, for the number of shares evidenced by
such surrendered certificate or certificates less the number of
shares being converted. Such conversion shall be deemed to have
been made immediately prior to the close of business on the date
of such surrender of the certificate or certificates representing
the shares of Series C Preferred Stock to be converted and the
making of any payments required therewith. Upon such conversion,
except as provided in Section 5(a), the rights of the holder
thereof as to the shares being converted shall cease except for
the right to receive shares of Common Stock (or such other
consideration as provided herein) in accordance herewith, and the
person entitled to receive the shares of Common Stock shall be
treated for all purposes as having become the record holder of
such shares of Common Stock at such time. The Corporation shall
not be required to convert, and no surrender of shares of Series C
Preferred Stock shall be effective for that purpose, while the
transfer books of the Corporation for the Common Stock are closed
for any purposes (but not for any period in excess of 15 days),
but the surrender of shares of Series C Preferred Stock for
conversion during any period while such books are so closed shall
become effective for conversion immediately upon the reopening of
such books, as if the conversion had been made on the date such
shares of Series C Preferred Stock were surrendered, and at the
Conversion Price in effect at the date of such surrender.
(c) Adjustment to Conversion Price. The Conversion Price
shall be adjusted from time to time as follows:
(i) In case the Corporation shall hereafter pay a
dividend or make a distribution to all holders of the
outstanding Common Stock in shares of Common Stock, the
Conversion Price in effect at the opening of business on the
date following the Record Date (as defined in Section 8) for
such dividend or other distribution shall be reduced by
multiplying such Conversion Price by a fraction of which the
numerator shall be the number of shares of Common Stock
outstanding at the close of business on such Record Date and
the denominator shall be the sum of such number of shares and
the total number of shares constituting such dividend or
other distribution, such reduction to become effective
immediately after the opening of business on the day
following such Record Date. The Corporation will not pay any
dividend or make any distribution on shares of Common
Stock held in the treasury of the Corporation.
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(ii) In case the Corporation shall hereafter issue rights or
warrants to all holders of its outstanding shares
of Common Stock entitling them (for a period expiring within
45 days after the Record Date fixed for distribution of such
rights or warrants) to subscribe for or purchase shares of
Common Stock at a price per share less than the Current
Market Price (as defined in Section 8) on such Record Date,
the Conversion Price shall be adjusted so that the same shall
equal the price determined by multiplying the Conversion
Price in effect at the close of business on such Record Date
by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding at the close of business
on such Record Date plus the number of shares which the
aggregate offering price of the total number of shares so
offered would purchase at such Current Market Price, and of
which the denominator shall be the number of shares of Common
Stock outstanding on such Record Date plus the total number
of additional shares of Common Stock offered for subscription
or purchase. Such adjustment shall become effective
immediately after the opening of business on the day
following the Record Date for distribution of such rights or
warrants. To the extent that shares of Common Stock are not
delivered after the expiration of such rights or warrants,
the Conversion Price shall be readjusted to the Conversion
Price which would then be in effect had the adjustments made
in respect of the issuance of such rights or warrants been
made on the basis of delivery of only the number of shares of
Common Stock actually delivered.
(iii) In case outstanding shares of Common Stock shall
be subdivided into a greater number of shares of Common
Stock, the Conversion Price in effect at the opening of
business on the day following the Record Date for such
subdivision shall be proportionately reduced, and conversely,
in case outstanding shares of Common Stock shall be combined
into a smaller number of shares of Common Stock, the
Conversion Price in effect at the opening of business on the
day following the Record Date for such combination shall be
proportionately increased, such reduction or increase, as the
case may be, to become effective immediately after the
opening of business on the day following the applicable
Record Date.
(iv) Subject to the last sentence of this Section
5(c)(iv), in case the Corporation shall, by dividend or
otherwise, distribute to all holders of its Common Stock
shares of any class of capital stock (other than a dividend
or distribution to which Section 5(c)(i) applies) or
evidences of its indebtedness or assets (including
securities, but excluding any dividend or distribution to
which Section 5(c)(ii) applies, and excluding any dividend or
distribution (x) in connection with the liquidation,
dissolution or winding up of the Corporation, whether
voluntary or involuntary or (y) paid exclusively in cash)
(any of the foregoing being hereinafter in this Section
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5(c)(iv) called the "Securities"), then, in each such case,
unless the Corporation elects to reserve such Securities for
distribution to the holders of the Series C Preferred Stock
upon the conversion thereof so that any such holder
converting such shares will receive upon such conversion, in
addition to the shares of the Common Stock to which such
holder is entitled, the amount and kind of such Securities
which such holder would have received if such holder had,
immediately prior to the Record Date for the distribution of
the Securities, converted such shares of Series C Preferred
Stock into Common Stock, the Conversion Price shall be
reduced so that the same shall equal the price determined by
multiplying the Conversion Price in effect at the close of
business on the Record Date for such distribution by a
fraction of which the numerator shall be the Current Market
Price of the Common Stock on such Record Date less the fair
market value (as defined in Section 8, as determined by the
Board of Directors, whose determination shall be conclusive
and described in a resolution of the Board of Directors), on
such Record Date, of the portion of the Securities so
distributed applicable to one share of Common Stock and the
denominator shall be such Current Market Price per share of
the Common Stock, such reduction to become effective
immediately prior to the opening of business on the day
following the Record Date; provided, however, that in the
event the then fair market value (as so determined) of the
portion of the Securities so distributed applicable to one
share of Common Stock is equal to or greater than the Current
Market Price of the Common Stock on such Record Date, in lieu
of the foregoing adjustment, adequate provision shall be made
so that each holder of shares of Series C Preferred Stock
shall have the right to receive upon conversion thereof the
amount and kind of Securities such holder would have received
had he converted such shares on such Record Date. If the
Board of Directors determines the fair market value of any
distribution for purposes of this Section 5(c)(iv) by
reference to the actual or when issued trading market for any
securities comprising a distribution of Securities, it must
in doing so consider the prices in such market over the same
period used in computing the Current Market Price of the
Common Stock.
The occurrence of a Distribution Date (as defined in the
Rights Agreement dated as of April 26, 1988, between the
Corporation and State Street Bank and Trust Company, as
Rights Agent, as may be amended from time to time, and any
successor rights agreement (the "Rights Agreement")), or the
occurrence of any other event as a result of which holders of
shares of Series C Preferred Stock converting such shares
into Common Stock hereunder will not be entitled to receive
rights issued pursuant to the Rights Agreement (the "Rights")
in the same amount and manner as if such holders had
converted such shares immediately prior to the occurrence of
such event, shall be deemed a distribution of Rights for the
purposes of conversion adjustments pursuant to this Section
12
5(c)(iv). In lieu of making any adjustment to the Conversion
Price under this Section 5(c)(iv) as a result of such a
distribution of Rights, the Corporation may, at its option,
amend such Rights Agreement to provide that Rights shall be
issuable in the same amount and manner upon conversion of the
Series C Preferred Stock without regard to whether the shares
of Common Stock issuable upon conversion of the Series C
Preferred Stock were issued before or after such Distribution
Date or other event.
(v) In case the Corporation shall, by dividend or
otherwise, at any time distribute to all holders of its
Common Stock cash (excluding (x) any quarterly cash dividend
on the Common Stock to the extent the aggregate cash dividend
per share of Common Stock in any fiscal quarter does not
exceed the greater of (A) the amount per share of Common
Stock of the next preceding quarterly cash dividend on the
Common Stock to the extent such preceding quarterly dividend
did not require any adjustment of the Conversion Price
pursuant to this Section 5(c)(v) (as adjusted to reflect
subdivisions or combinations of the Common Stock), and (B)
3.75% of the Current Market Price of the Common Stock on the
Trading Day (as defined in Section 8) next preceding the date
of declaration of such dividend and (y) any dividend or
distribution in connection with the liquidation, dissolution
or winding up of the Corporation, whether voluntary or
involuntary), then, in each such case, unless the Corporation
elects to reserve such an amount of cash for distribution to
the holders of the Series C Preferred Stock upon the
conversion of the shares of Series C Preferred Stock so that
any such holder converting such shares will receive upon such
conversion, in addition to the shares of the Common Stock to
which such holder is entitled, the amount of cash which such
holder would have received if such holder had, immediately
prior to the Record Date for such distribution of cash,
converted its shares of Series C Preferred Stock into Common
Stock, the Conversion Price shall be reduced so that the same
shall equal the price determined by multiplying the
Conversion Price in effect at the close of business on such
Record Date by a fraction of which the numerator shall be the
Current Market Price of the Common Stock on such Record Date
less the amount of cash so distributed (to the extent not
excluded as provided above) applicable to one share of Common
Stock and the denominator shall be such Current Market
Price of the Common Stock, such reduction to become
effective immediately prior to the opening of business on
the day following such Record Date; provided, however,
that in the event the portion of the cash so distributed
applicable to one share of Common Stock is equal to or
greater than the Current Market Price of the Common Stock
on such Record Date, in lieu of the foregoing adjustment,
adequate provision shall be made so that each holder of
shares of Series C Preferred Stock shall thereafter have the
right to receive upon conversion the amount of cash such
13
holder would have received had he converted each share of
Series C Preferred Stock on such Record Date.
(vi) In case of the consummation of a tender or
exchange offer made by the Corporation or any subsidiary
of the Corporation for all or any portion of the Common
Stock that involves the payment by the Corporation or such
subsidiary of consideration per share of Common Stock having
a fair market value (as determined by the Board of Directors,
whose determination shall be conclusive and described in a
resolution of the Board of Directors) at the last time (the
"Expiration Time") tenders or exchanges may be made pursuant
to such tender or exchange offer (as it shall have been
amended) that exceeds the Current Market Price of the Common
Stock on the Trading Day next succeeding the Expiration Time,
the Conversion Price shall be reduced so that the same shall
equal the price determined by multiplying the Conversion
Price in effect immediately prior to the Expiration Time by a
fraction of which the numerator shall be the number of shares
of Common Stock outstanding (including any tendered or
exchanged shares) on the Expiration Time multiplied by the
Current Market Price of the Common Stock on the Trading Day
next succeeding the Expiration Time and the denominator shall
be the sum of (x) the fair market value (determined as
aforesaid) of the aggregate consideration payable to
stockholders based on the acceptance (up to any maximum
specified in the terms of the tender or exchange offer) of
all shares validly tendered or exchanged and not withdrawn as
of the Expiration Time (the shares deemed so accepted, up to
any such maximum, being referred to as the "Purchased
Shares") and (y) the product of the number of shares of
Common Stock outstanding (less any Purchased Shares) on the
Expiration Time and the Current Market Price of the Common
Stock on the Trading Day next succeeding the Expiration Time,
such reduction to become effective immediately prior to the
opening of business on the day following the Expiration Time.
(vii) The Corporation may make such reductions in the
Conversion Price, in addition to those required by this
Section 5(c), as the Board of Directors considers to be
advisable to avoid or diminish any income tax to holders of
Common Stock or rights to purchase Common Stock resulting
from any dividend or distribution of stock (or rights to
acquire stock) or from any event treated as such for income
tax purposes. To the extent permitted by applicable law, the
Corporation from time to time may reduce the Conversion Price
by any amount for any period of time if the period is at
least 20 days, the reduction is irrevocable during the period
and the Board of Directors shall have made a determination
that such reduction would be in the best interests of the
Corporation, which determination shall be conclusive.
Whenever the Conversion Price is reduced pursuant to the
preceding sentence, the Corporation shall mail to holders of
record of the Series C Preferred Stock a notice of the
reduction at least 15 days prior to the date the reduced
14
Conversion Price takes effect, and such notice shall state
the reduced Conversion Price and the period it will be in
effect.
(viii) No adjustment in the Conversion Price shall be
required unless such adjustment would require an increase or
decrease of at least 1% in the Conversion Price; provided,
however, that any adjustments which by reason of this Section
5(c)(viii) are not required to be made shall be carried
forward and taken into account in determining whether any
subsequent adjustment shall be required.
(ix) Notwithstanding any other provision of this
Section 5, no adjustment to the Conversion Price shall reduce
the Conversion Price below the then par value per share of
the Common Stock, and any such purported adjustment shall
instead reduce the Conversion Price to such par value. The
Corporation hereby covenants not to take any action (1) to
increase the par value per share of the Common Stock or (2)
that would or does result in any adjustment in the Conversion
Price that, if made without giving effect to the previous
sentence, would cause the Conversion Price to be less than
the then par value per share of the Common Stock, provided,
however, that the covenant in this sentence shall be
suspended if within 10 days of determining in good faith that
such action would result in such adjustment (but not later
than the business day next following the effectiveness of
such adjustment), the Corporation gives notice of redemption
of all outstanding shares of the Series C Preferred Stock,
and effects the redemption referred to in such notice on the
redemption date referred to therein in compliance with
Section 4, but the covenant in this sentence shall be
retroactively reinstated if such notice and redemption does
not occur.
(x) Wherever the Conversion Price is adjusted as herein
provided:
(1) the Corporation shall compute the adjusted
Conversion Price and shall prepare a certificate signed
by the Treasurer or an Assistant Treasurer of the
Corporation setting forth the adjusted Conversion Price
and showing in reasonable detail the facts upon which
such adjustment is based, and such certificate shall
forthwith be filed with the Transfer Agent; and
(2) a notice stating the Conversion Price has been
adjusted and setting forth the adjusted Conversion Price
shall as soon as practicable be mailed by the
Corporation to all record holders of shares of Series C
Preferred Stock at their last addresses as they shall
appear upon the stock transfer books of the Corporation.
(xi) In any case in which this Section 5(c) provides
that an adjustment shall become effective immediately after a
Record Date for an event, the Corporation may defer until the
15
occurrence of such event (y) issuing to the holder of any
share of Series C Preferred Stock converted after such Record
Date and before the occurrence of such event the additional
shares of Common Stock issuable upon such conversion by
reason of the adjustment required by such event over and
above the Common Stock issuable upon such conversion before
giving effect to such adjustment and (z) paying to such
holder any amount in cash in lieu of any fractional share of
Common Stock pursuant to Section 5(d).
(d) No Fractional Shares. No fractional shares or scrip
representing fractional shares of Common Stock shall be issued
upon conversion of Series C Preferred Stock. Instead of any
fractional share of Common Stock that would otherwise be issuable
upon conversion of any shares of Series C Preferred Stock, the
Corporation shall pay a cash adjustment in respect of such
fractional interest in an amount equal to the same fraction of the
Closing Price (as defined in Section 8) of a share of Common Stock
(or, if there is no such Closing Price, the fair market value of a
share of Common Stock, as determined or prescribed by the Board of
Directors) at the close of business on the Trading Day immediately
preceding the date of conversion.
(e) Reclassification, Consolidation, Merger or Sale of
Assets. In the event that the Corporation shall be a party to any
transaction (including without limitation any (i) recapitalization
or reclassification of the Common Stock (other than a change in
par value, or from par value to no par value, or from no par value
to par value, or as a result of a subdivision or combination of
the Common Stock), (ii) any consolidation or merger of the
Corporation with or into any other person or any merger of another
person into the Corporation (other than a merger which does not
result in a reclassification, conversion, exchange or cancellation
of outstanding shares of Common Stock of the Corporation), (iii)
any sale or transfer of all or substantially all of the assets of
the Corporation, or (iv) any compulsory share exchange) pursuant
to which the Common Stock shall be exchanged for, converted into,
acquired for or constitute solely the right to receive other
securities, cash or other property, then appropriate provision
shall be made as part of the terms of such transaction whereby (1)
in the case of any such transaction not constituting a Common
Stock Fundamental Change (as defined in Section 5(i)) and subject
to funds being legally available therefor at the time of such
conversion, the holder of each share of Series C Preferred Stock
then outstanding shall thereafter have the right to convert such
share only into the kind and amount of securities, cash and other
property receivable upon such recapitalization, reclassification,
consolidation, merger, sale, transfer or share exchange by a
holder of the number of shares of Common Stock into which such
share of Series C Preferred Stock might have been converted
immediately prior to such transaction, after giving effect, in the
case of any Non-Stock Fundamental Change, to any adjustment in the
Conversion Price required by the provisions of Section 5(h), and
(2) in the case of a Common Stock Fundamental Change, the holder
of each share of Series C Preferred Stock then outstanding shall
16
thereafter have the right to convert such share only into common
stock of the kind received by holders of Common Stock as a result
of such Common Stock Fundamental Change in an amount determined
pursuant to the provisions of Section 5(h). The Corporation or
the person formed by such consolidation or resulting from such
merger or which acquired such assets or which acquired the
Corporation's shares, as the case may be, shall make provisions in
its certificate or articles of incorporation or other constituent
document to establish such right. Such certificate or articles of
incorporation or other constituent document shall provide for
adjustments which, for events subsequent to the effective date of
such certificate or articles of incorporation or other constituent
document, shall be nearly equivalent as may be practicable to the
adjustments provided for in this Section 5. The above provisions
shall similarly apply to successive transactions of the type
described in this Section 5(e).
(f) Reservation of Shares; Transfer Taxes; Etc. The
Corporation shall at all times reserve and keep available, out of
its authorized and unissued stock, solely for the purpose of
effecting the conversion of the Series C Preferred Stock, such
number of shares of its Common Stock free of preemptive rights as
shall from time to time be sufficient to effect the conversion of
all shares of Series C Preferred Stock from time to time
outstanding. The Corporation shall from time to time, in
accordance with the laws of the State of Delaware, use its best
efforts to increase the authorized number of shares of Common
Stock if at any time the number of shares of authorized and
unissued Common Stock shall not be sufficient to permit the
conversion of all the then outstanding shares of Series C
Preferred Stock.
If any shares of Common Stock required to be reserved for
purposes of conversion of the Series C Preferred Stock hereunder
require registration with or approval of any governmental
authority under any Federal or State law before such shares may be
issued upon conversion, the Corporation will in good faith and as
expeditiously as possible endeavor to cause such shares to be duly
registered or approved, as the case may be. If the Common Stock
is listed on the New York Stock Exchange or any other national
securities exchange, the Corporation will, in good faith and as
expeditiously as possible, endeavor, if permitted by the rules of
such exchange, to list and keep listed on such exchange, upon
official notice of issuance, all shares of Common Stock issuable
upon conversion of the Series C Preferred Stock.
(g) Prior Notice of Certain Events. In case:
(i) the Corporation shall (1) declare any dividend (or
any other distribution) on its Common Stock, other than (A) a
dividend payable in shares of Common Stock or (B) a dividend
payable solely in cash for which no adjustment to the
Conversion Price is required by Section 5(v) hereof or (2)
declare or authorize a redemption or repurchase of in excess
of 10% of the then outstanding shares of Common Stock; or
17
(ii) the Corporation shall authorize the granting to
all holders of Common Stock of rights or warrants to
subscribe for or purchase any shares of stock of any class or
of any other rights or warrants (other than Rights); or
(iii) of any reclassification of Common Stock (other
than a subdivision or combination of the outstanding Common
Stock, or a change in par value, or from par value to no par
value, or from no par value to par value), or of any
consolidation or merger to which the Corporation is a party
and for which approval of any stockholders of the Corporation
shall be required, or of the sale or transfer of all or
substantially all of the assets of the Corporation or of any
compulsory share exchange where the Common Stock is converted
into other securities, cash or other property; or
(iv) of the voluntary or involuntary liquidation,
dissolution or winding up of the Corporation;
then the Corporation shall cause to be filed with the Transfer
Agent, and shall cause to be mailed to the holders of record of
the Series C Preferred Stock, at their last addresses as they
shall appear upon the stock transfer books of the Corporation, at
least 15 days prior to the applicable record date hereinafter
specified, a notice stating (x) the date on which a record (if
any) is to be taken for the purpose of such dividend,
distribution, redemption, repurchase or granting of rights or
warrants or, if a record is not to be taken, the date as of which
the holders of Common Stock of record to be entitled to such
dividend, distribution, redemption, rights or warrants are to be
determined or (y) the date on which such reclassification,
consolidation, merger, sale, transfer, share exchange,
liquidation, dissolution or winding up is expected to become
effective, and the date as of which it is expected that holders of
Common Stock of record shall be entitled to exchange their shares
of Common Stock for securities or other property deliverable upon
such reclassification, consolidation, merger, sale, transfer,
share exchange, liquidation, dissolution or winding up. No
failure to mail such notice or any defect therein or in the
mailing thereof shall affect the validity of the corporate action
required to be specified in such notice.
(h) Adjustments in Case of Fundamental Changes.
Notwithstanding any other provision in this Section 5 to the
contrary, if any Fundamental Change (as defined in Section 5(i))
occurs, then the Conversion Price in effect will be adjusted
immediately after such Fundamental Change (which for purposes of
such adjustment shall be deemed to occur on the earlier of the
occurrence of such Fundamental Change and the date, if any, fixed
for determination of stockholders entitled to receive the cash,
securities, property or other assets distributable in such
Fundamental Change to holders of the Common Stock) as described
below:
18
(i) In the case of a Non-Stock Fundamental Change, the
Conversion Price immediately following such Non-Stock
Fundamental Change shall be the lower of (A) the Conversion
Price in effect immediately prior to such Non-Stock
Fundamental Change, but after giving effect to any other
prior adjustments effected pursuant to this Section 5, and
(B) the product of (1) the greater of the Applicable Price
(as defined in Section 5(i)) or the then applicable Reference
Market Price (as defined in Section 5(i)) and (2) a fraction,
the numerator of which is $50 and the denominator of which is
(x) the Redemption Price applicable on the date of such Non-
Stock Fundamental Change (or, for the period commencing on
August 18, 1992 and ending on August 31, 1993 and the 12-
month periods commencing September 1, 1993 and 1994, the
product of 106.250%, 105.625% and 105.000%, respectively,
times $50), plus (y) an amount equal to full cumulative
dividends thereon through but excluding the date of such Non-
Stock Fundamental Change.
(ii) In the case of a Common Stock Fundamental Change,
the Conversion Price immediately following such Common Stock
Fundamental Change shall be the Conversion Price in effect
immediately prior to such Common Stock Fundamental Change,
but after giving effect to any other prior adjustments
effected pursuant to this Section 5, multiplied by a
fraction, the numerator of which is the Purchaser Stock Price
(as defined in Section 5(i)) and the denominator of which is
the Applicable Price; provided, however, that in the event of
a Common Stock Fundamental Change in which (A) 100% of the
value of the consideration received by a holder of Common
Stock is common stock of the successor, acquiror or other
third party (and cash, if any, paid with respect to any
fractional interests in such common stock resulting from such
Common Stock Fundamental Change) and (B) all of the Common
Stock shall have been exchanged for, converted into or
acquired for such common stock (and any cash paid with
respect to fractional interests) of the successor, acquiror
or other third party, the Conversion Price immediately
following such Common Stock Fundamental Change shall be the
Conversion Price in effect immediately prior to such Common
Stock Fundamental Change multiplied by a fraction, the
numerator of which is one (1) and the denominator of which is
the number of shares of common stock of the successor,
acquiror, or other third party received by a holder of one
share of Common Stock as a result of such Common Stock
Fundamental Change.
(i) Definitions. The following definitions shall apply to
terms used in this Section 5:
(1) "Applicable Price" shall mean (i) in the event of a
Non- Stock Fundamental Change in which the holders of the
Common Stock receive only cash, the amount of cash received
by the holder of one share of Common Stock and (ii) in the
event of any other Non-Stock Fundamental Change or any Common
19
Stock Fundamental Change, the Current Market Price on the
date fixed for the determination of the holders of Common
Stock entitled to receive cash, securities, property or other
assets in connection with such Non-Stock Fundamental Change
or Common Stock Fundamental Change, or, if there is no such
date, as of the date upon which the holders of the Common
Stock shall have the right to receive such cash, securities,
property or other assets.
(2) "Common Stock Fundamental Change" shall mean any
Fundamental Change in which more than 50% by value (as
determined in good faith by the Board of Directors of the
Corporation) of the consideration received by the holders of
Common Stock pursuant to such transaction consists of common
stock that, for the consecutive 10 Trading Days immediately
prior to such Fundamental Change, has been admitted for
listing or admitted for listing subject to notice of issuance
on a national securities exchange or quoted on the National
Market System of the National Association of Securities
Dealers Automated Quotations System; provided, however, that
a Fundamental Change shall not be a Common Stock Fundamental
Change unless either (i) the Corporation continues to exist
after the occurrence of such Fundamental Change and the
outstanding shares of Series C Preferred Stock continue to
exist as outstanding shares of Series C Preferred Stock, or
(ii) not later than the occurrence of such Fundamental
Change, the outstanding shares of Series C Preferred Stock
are converted into or exchanged for shares of convertible
preferred stock of a corporation succeeding directly or
indirectly to the business of the Corporation, which
convertible preferred stock has powers, preferences and
relative, participating, optional or other rights, and
qualifications, limitations and restrictions substantially
similar to those of the Series C Preferred Stock.
(3) "Fundamental Change" shall mean the occurrence of
any transaction or event or series of transactions or events
pursuant to which all or substantially all of the Common
Stock shall be exchanged for, converted into, acquired for or
constitute solely the right to receive cash, securities,
property or other assets (whether by means of an exchange
offer, liquidation, tender offer, consolidation, merger,
combination, reclassification, recapitalization or
otherwise); provided, however, in the case of any series of
transactions or events, for purposes of adjustment of the
Conversion Price, such Fundamental Change shall be deemed to
have occurred when substantially all of the Common Stock of
the Corporation shall be exchanged for, converted into, or
acquired for or constitute solely the right to receive cash,
securities, property or other assets, but the adjustment
shall be based upon the consideration which the holders of
Common Stock received in such transactions or event as a
result of which more than 50% of the Common Stock of the
Corporation shall have been exchanged for, converted into, or
acquired for or constitute solely the right to receive cash,
20
securities, property or other assets; provided, further, that
such term does not include (i) any such transactions or event
in which the Corporation and/or any of its subsidiaries are
the issuers of all the cash, securities, property or other
assets exchanged, acquired or otherwise issued in such
transaction or event, or (ii) any such transaction or event
in which the holders of Common Stock receive securities of an
issuer other than the Corporation if, immediately following
such transaction or event, such holders hold a majority of
the securities having the power to vote normally in the
election of directors of such other issuer outstanding
immediately following such transaction or other event.
(4) "Non-Stock Fundamental Change" shall mean any
Fundamental Change other than a Common Stock Fundamental
Change.
(5) "Purchaser Stock Price" shall mean, with respect to
any Common Stock Fundamental Change, the average of the
Closing Prices for one share of the common stock received in
such Common Stock Fundamental Change during the 10 Trading
Days immediately prior to the date fixed for the
determination of the holders of Common Stock entitled to
receive such common stock, or if there is no such date,
the date upon which the holders of the Common Stock shall
have the right to receive such common stock.
(6) "Reference Market Price" shall initially mean
$13.8333 (which is an amount equal to 66 2/3% of the Closing
Price for the Common Stock on August 13, 1992), and in the
event of any adjustment to the Conversion Price other than as
a result of a Fundamental Change, the Reference Market Price
shall also be adjusted so that the ratio of the Reference
Market Price to the Conversion Price after giving effect to
any such adjustment shall always be the same as the ratio of
the initial Reference Market Price to the initial Conversion
Price set forth in Section 5(a) above.
(j) Dividend or Interest Reinvestment Plans; Other.
Notwithstanding the foregoing provisions, the issuance of any
shares of Common Stock pursuant to any plan providing for the
reinvestment of dividends or interest payable on securities of the
Corporation and the investment of additional optional amounts in
shares of Common Stock under any such plan, and the issuance of
any shares of Common Stock or options or rights to purchase such
shares pursuant to any employee benefit plan or program of the
Corporation, or pursuant to any option, warrant, right or
exercisable, exchangeable or convertible security outstanding as
of the date the Series C Preferred Stock was first designated
(except as expressly provided in Section 5(c)(iv) with respect to
certain events under the Rights Agreement), shall not be deemed to
constitute an issuance of Common Stock or exercisable,
exchangeable or convertible securities by the Corporation to which
any of the adjustment provisions described above applies. There
shall be no adjustment of the Conversion Price in case of the
21
issuance of any stock (or securities convertible into or
exchangeable for stock) of the Corporation except as described in
this Section 5. Except as expressly set forth in this Section 5,
if any action would require adjustment of the Conversion Price
pursuant to more than one of the provisions described above, only
one adjustment shall be made and such adjustment shall be the
amount of adjustment which has the highest absolute value.
(k) For purposes of this Section 5, the number of shares of
Common Stock at any time outstanding shall not include any shares
of Common Stock then owned or held by or for the account of the
Corporation.
6. Voting Rights. Other than as required by applicable law, the
Series C Preferred Stock shall not have any voting powers either
general or special except that:
(a) Unless a greater vote or consent shall then be required
by law, the affirmative vote or consent of two-thirds of the votes
to which the holders of the outstanding shares of the Series C
Preferred Stock, and each other series of Preferred Stock of the
Corporation similarly affected, if any, voting together as a
single class, are entitled shall be necessary for authorizing,
effecting or validating the amendment, alteration or repeal of any
of the provisions of the Certificate of Incorporation or of any
amendment or supplement thereto (including any Certificate of
Designations, Preferences and Rights or any similar document
relating to any series of Preferred Stock) of the Corporation,
which would materially and adversely affect the preferences,
rights, powers or privileges, qualification, limitations and
restrictions of the Series C Preferred Stock and any such other
series of Preferred Stock; provided, however, that the creation,
issuance or increase in the amount of authorized shares of any
series of Preferred Stock ranking on a parity with or junior to
the Series C Preferred Stock as to the payment of dividends or
upon liquidation, dissolution or winding up will not be deemed to
materially and adversely affect such rights, powers or privileges,
qualification, limitations and restrictions of the Series C
Preferred Stock.
(b) Unless the vote or consent of the holders of a greater
number of shares shall then be required by law, the affirmative
vote or consent of two-thirds of the votes to which the holders of
the outstanding shares of the Series C Preferred Stock, and all
other series of Preferred Stock of the Corporation ranking on
parity with shares of the Series C Preferred Stock (either as to
dividends or upon liquidation, dissolution or winding up) as to
which like voting rights have been conferred, voting together as a
single class, are entitled shall be necessary to create, authorize
or issue, or reclassify any authorized stock of the Corporation
into, or create, authorize or issue any obligation or security
convertible into or evidencing a right to purchase, any shares of
any class or series of stock of the Corporation ranking prior to
the Series C Preferred Stock or ranking prior to any other class
or series of Preferred Stock of the Corporation which ranks on a
22
parity with the Series C Preferred Stock as to dividends or upon
liquidation, dissolution or winding up.
(c) Whenever, at any time or times, dividends payable on the
shares of Series C Preferred Stock shall be in arrears in an
amount equal to at least six full quarterly dividends on shares of
the Series C Preferred Stock at the time outstanding, the holders
of the outstanding shares of Series C Preferred Stock shall have
the exclusive right, voting together as a class with holders of
shares of any one or more other series of Preferred Stock (other
than the Series A Preferred Stock) ranking on a parity with the
Series C Preferred Stock (either as to dividends or upon
liquidation, dissolution or winding up) upon which like voting
rights have been conferred and are then exercisable, to elect two
(2) directors of the Corporation for one-year terms at the
Corporation's next annual meeting of stockholders and at each
subsequent annual meeting of stockholders. If the right to elect
directors shall have accrued to the holders of the Series C
Preferred Stock more than 90 days prior to the date established
for the next annual meeting of stockholders, the President of the
Corporation shall, within 20 days after delivery to the
Corporation at its principal office of a written request for a
special meeting signed by the holders of at least 10% of all
outstanding shares of the Series C Preferred Stock, call a special
meeting of the holders of Series C Preferred Stock to be held
within 60 days after the delivery of such request for the purpose
of electing such additional directors. Upon the vesting of such
right of the holders of Series C Preferred Stock, the maximum
authorized number of members of the Board of Directors shall
automatically be increased by two and the two vacancies so created
shall be filled by vote of the holders of the outstanding shares
of Series C Preferred Stock (either alone or together with the
holders of shares of any one or more other such series of
Preferred Stock entitled to vote in such election) as set forth
above. The right of the holders of Series C Preferred Stock to
elect members of the Board of Directors of the Corporation as
aforesaid shall continue until such time as all dividends in
arrears on the Series C Preferred Stock shall have been paid in
full or declared and set apart for payment, at which time such
right shall terminate, except as herein or by law expressly
provided, subject to revesting in the event of each and every
subsequent default of the character above described.
(d) Upon termination of such special voting rights
attributable to all holders of the Series C Preferred Stock and
any other such series of Preferred Stock ranking on a parity with
the Series C Preferred Stock as to dividends or upon liquidation,
dissolution or winding up and upon which like voting rights have
been conferred and are exercisable, the term of office of each
director elected by the holders of shares of Series C Preferred
Stock and such parity Preferred Stock (a "Preferred Stock
Director") pursuant to such special voting rights shall
immediately terminate and the number of directors constituting the
entire Board of Directors shall be reduced by the number of
Preferred Stock Directors. Any Preferred Stock Director may be
23
removed by, and shall not be removed otherwise than by, a majority
of the votes to which the holders of the outstanding shares of
Series C Preferred Stock and all other such series of Preferred
Stock ranking on a parity with the Series C Preferred Stock with
respect to dividends who were entitled to participate in such
Preferred Stock Director's election, voting as a single class, are
entitled. If the office of any Preferred Stock Director becomes
vacant by reason of death, resignation, retirement,
disqualification, removal from office, or otherwise, the remaining
Preferred Stock Director may choose a successor who shall hold
office for the unexpired term in respect of which such vacancy
occurred.
(e) In connection with any right to vote, each holder of
Series C Preferred Stock shall be entitled to one vote for each
share held (the holders of shares of any other series of Preferred
Stock being entitled to such number of votes, if any, for each
share of stock held as may be granted to them).
7. Ranking. The Common Stock and Series B Participating
Preferred Stock shall rank junior to the Series C Preferred Stock,
and the Series A Preferred Stock shall rank on a parity with the
Preferred Stock, as to dividends and upon liquidation, dissolution
or winding up, in each case as described in Section 2 or 3,
respectively. Any other class or series of stock of the
Corporation shall be deemed to rank:
(a) prior to the Series C Preferred Stock, as to dividends
or upon liquidation, dissolution or winding up as described in
Section 3, respectively, if the holders of such class shall be
entitled to the receipt of dividends or of amounts distributable
upon such a liquidation, dissolution or winding up, as the case
may be, in preference or priority to the holders of the Series C
Preferred Stock;
(b) on a parity with the Series C Preferred Stock, as to
dividends or upon liquidation, dissolution or winding up as
described in Section 3, respectively, whether or not the dividend
rates, dividend payment dates or redemption or liquidation prices
per share thereof be different from those of the Series C
Preferred Stock, if the holders of such class of stock and the
Series C Preferred Stock shall be entitled to the receipt of
dividends or of amounts distributable upon such a liquidation,
dissolution or winding up, as the case may be, in proportion to
their respective amounts of accrued and unpaid dividends per share
or liquidation prices, without preference or priority one over the
other; and
(c) junior to the Series C Preferred Stock, as to dividends
or upon liquidation, dissolution or winding up as described in
Section 3, respectively, if the holders of Series C Preferred
Stock shall be entitled to receipt of dividends or of amounts
distributable upon such a liquidation, dissolution or winding up,
as the case may be, in preference or priority to the holders of
shares of such stock.
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8. Definitions. For purposes of this Certificate of
Designations, Preferences and Rights of Series C Preferred Stock,
the following terms shall have the meanings indicated:
(a) "business day" shall mean any day other than a Saturday,
Sunday, or a day on which banking institutions in the State of New
York or The Commonwealth of Massachusetts are authorized or
obligated by law or executive order to close or a day which is or
is declared a national or New York or Massachusetts state holiday;
(b) "Closing Price" with respect to any securities on any
day shall mean the closing sale price regular way on such day or,
in case no such sale takes place on such day, the average of the
reported closing bid and asked prices, regular way, in each case
on the New York Stock Exchange, or, if such security is not listed
or admitted to trading on such Exchange, on the principal national
securities exchange or quotation system on which such security is
quoted or listed or admitted to trading, or, if not quoted or
listed or admitted to trading on any national securities exchange
or quotation system, the average of the closing bid and asked
prices of such security on the over-the-counter market on the day
in question as reported by the National Quotation Bureau
Incorporated, or a similarly generally accepted reporting service,
or if not so available, in such manner as furnished by any New
York Stock Exchange member firm selected from time to time by the
Board of Directors for that purpose or a price determined in good
faith by the Board of Directors.
(c) "Current Market Price" shall mean, for purposes of any
computation under Section 5(c)(vi), the average of the daily
Closing Prices per share of Common Stock on the day in question
and the next two succeeding Trading Days, and for purposes of any
other computation hereunder, the average of the daily Closing
Prices per share of Common Stock for the ten consecutive Trading
Days immediately prior to the date in question; provided, however,
that (1) if the "ex" date (as hereinafter defined) for any event
(other than the issuance, distribution or Fundamental Change
requiring such computation) that requires an adjustment to the
Conversion Price occurs during the applicable measurement period,
for purposes of such computation the Closing Price for each
Trading Day prior to the "ex" date for such other event shall be
adjusted by multiplying such Closing Price by the same fraction by
which the Conversion Price is so required to be adjusted as a
result of such other event, (2) if the "ex" date for any event
(other than the issuance, distribution or Fundamental Change
requiring such computation) that requires an adjustment to the
Conversion Price occurs on or after the "ex" date for the
issuance, distribution or Fundamental Change requiring such
computation and on or prior to the day in question, for purposes
of such computation the Closing Price for each Trading Day on and
after the "ex" date for such other event shall be adjusted by
multiplying such Closing Price by the reciprocal of the fraction
by which the Conversion Price is so required to be adjusted as a
result of such other event, and (3) if the "ex" date for the
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issuance, distribution or Fundamental Change requiring such
computation is on or prior to the day in question, for purposes of
such computation, after taking into account any adjustment
required pursuant to clause (1) or (2) of this proviso, the
Closing Price for each Trading Day on or after such "ex" date
shall be adjusted by adding thereto the amount of any cash and the
fair market value (as determined by the Board of Directors in a
manner consistent with any determination of such value for
purposes of paragraph (iv) or (vi) of this Section 5(c), whose
determination shall be conclusive and described in a resolution of
the Board of Directors) of the evidences of indebtedness, shares
of capital stock or assets being distributed applicable to one
share of Common Stock as of the close of business on the day
before such "ex" date. For purposes of this paragraph, the term
"ex" date, (1) when used with respect to any issuance or
distribution, means the first date on which the Common Stock
trades regular way on the relevant exchange or in the relevant
market from which the Closing Price was obtained without the right
to receive such issuance or distribution, (2) when used with
respect to any subdivision or combination of shares of Common
Stock, means the first date on which the Common Stock trades
regular way on such exchange or in such market after the time at
which such subdivision or combination becomes effective, and (3)
when used with respect to any tender or exchange offer means the
first date on which the Common Stock trades regular way on such
exchange or in such market after the Expiration Time of such
offer.
(d) "fair market value" shall mean the amount which a
willing buyer would pay a willing seller in an arm's length
transaction.
(e) "full cumulative dividends" shall mean, with respect to
the Series C Preferred Stock, or any other capital stock of the
Corporation, as of any date the amount of accumulated, accrued and
unpaid dividends payable on such shares of Series C Preferred
Stock, or other capital stock, as the case may be, whether or not
earned or declared and whether or not there shall be funds legally
available for the payment thereof.
(f) "Record Date" shall mean, with respect to any dividend,
distribution or other transaction or event in which the holders of
Common Stock have the right to receive any cash, securities or
other property or in which the Common Stock (or other applicable
security) is exchanged or converted into any combination of cash,
securities or other property, the date fixed for determination of
stockholders entitled to receive such cash, securities of other
property (whether such dated is fixed by the Board of Directors or
by statute, contract or otherwise), and with respect to any
subdivision or combination of the Common Stock, the effective date
of such subdivision or combination.
(g) "Trading Day" shall mean (x) if the applicable security
is listed or admitted for trading on the New York Stock Exchange
or another national securities exchange, a day on which the New
26
York Stock Exchange or another national securities exchange is
open for business or (y) if the applicable security is quoted on
the National Market System of the National Association of
Securities Dealers Automated Quotation System, a day on which
trades may be made on such National Market System or (z) if the
applicable security is not so listed, admitted for trading or
quoted, any day other than a Saturday or Sunday or a day on which
banking institutions in the State of New York are authorized or
obligated by law or executive order to close.
(h) "Transfer Agent" shall mean State Street Bank and Trust
Company, or any other national or state bank or trust company
having combined capital and surplus of at least $100,000,000 and
designated by the Corporation as the transfer agent and/or
registrar of the Series C Preferred Stock, or if no such
designation is made, the Corporation.
27
IN WITNESS WHEREOF, The TJX Companies, Inc., has caused this
Certificate
of Designation to be signed by its Vice President - Finance and
its
Secretary this 19th day of August, 1992.
THE TJX COMPANIES, INC.
By: /s/ STEVEN R. WISHNER
Steven R. Wishner
Vice President - Finance
Attest: /s/ JAY H. MELTZER
Jay H. Meltzer
Secretary
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